Karnataka High Court
Hombalamma @ Kargamma vs Lakshmamma on 8 June, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:19625
MSA No. 51 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO. 51 OF 2022
BETWEEN:
HOMBALAMMA @ KARGAMMA
W/O. LATE BUNDAIAH,
AGED 95 YEARS,
B. BASAVAIAH
S/O. LATE BUNDAIAH,
AGED 75 YEARS,
BOTH RESIDING AT
DORANAHALLI VILLAGE,
MIKKERE POST,
KIRUGAVALU HOBLI,
MALAVALLI TALUK,
MANDYA DISTRICT-571 409
Digitally signed
by SHARANYA T BOTH SINCE DEAD BY THEIR LRS.,
Location: HIGH
COURT OF
KARNATAKA 1. MANJUNATHA B,
S/O. LATE B. BASAVAIAH,
AGED 38 YEARS,
2. DAKSHAYINI B,
D/O. LATE B. BASAVAIAH,
AGED 43 YEARS,
3. RENUKA B,
D/O. LATE B. BASAVAIAH,
AGED 35 YEARS,
-2-
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MSA No. 51 of 2022
4. NANDINI B,
D/O. LATE B. BASAVAIAH,
AGED 34 YEARS,
5. CHANDRAPRABHA B,
D/O. LATE B. BASAVAIAH,
AGED ABOUT 33 YEARS,
6. SOUBHAGYA,
W/O. LATE B. BASAVAIAH,
AGED ABOUT 65 YEARS,
APPELLANTS-1 TO 6 ALL ARE
RESIDING AT DORANAHALLI VILLAGE,
MIKKERE POST, KIRUGAVALU HOBLI,
MALAVALLI TALUK AND ALSO
RESIDING AT DOOR NO.191
6TH MAIN, 4TH CROSS,
ALANAHALLI LAYOUT
MYSORE-570 028.
...APPELLANTS
(BY SRI. D.R.SUNDARESH, ADVOCATE FOR
SRI Y.C.BHUJABALAIAH, ADVOCATE [THROUGH VC])
AND:
1. LAKSHMAMMA
W/O.LATE SIDDAIAH,
AGED ABOUT 85 YEARS,
SINCE DEAD BY HER LRs.,
2. SAROJAMMA
D/O. LATE SIDDAIAH,
W/O. S. HARIYAPPA,
AGED 66 YEARS,
R/O. KABBANAHALLI VILLAGE,
KOTATHI HOBLI,
MANDYA TALUK.
3. CHIKKATHAYAMMA
D/O.LATE BUNDAIAH
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MSA No. 51 of 2022
W/O. LINGAIAH,
AGED ABOUT 55 YEARS,
RESIDING AT DORANAHALLI
VILLAGE, MIKKERE POST,
KIRUGAVALU HOBLI,
MALAVALLI TALUK
MANDYA DISTRICT-571 409.
...RESPONDENTS
(BY SRI. MOHAN KUMAR H., ADVOCATE FOR R1;
R2 SERVED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC
AGAINST THE JUDGMENT AND DECREE DTD 05.12.2017
PASSED IN RA.NO.36/2013, ON THE FILE OF THE SENIOR
CIVIL JUDGE, MALAVALLI, DISPOSING OF THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
11.06.2013 PASSED IN OS.NO.116/2008 ON THE FILE OF THE
PRL.CIVIL JUDGE, MALAVALLI, PARTLY DECREEING THE SUIT
AND REMANDING BACK THE MATTER FOR FRESH DISPOSAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellants
and the learned counsel appearing for the respondents.
2. This appeal is filed against the judgment and decree
dated 05.12.2017 passed in R.A.No.36/2013 on the file of the
Senior Civil Judge, Malavalli.
3. The impugned order before this Court is remanding
the matter to the Trial Court to dispose of the matter in
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MSA No. 51 of 2022
accordance with law since the First Appellate Court came to the
conclusion that the legal heirs of Doddathayi are not brought on
record. Hence, came to the conclusion that they are necessary
parties since the suit is filed for the relief of partition. Hence,
directed the plaintiffs to implead the children of deceased
Doddathayi as parties to the suit and they are the necessary
parties. Being aggrieved by the said order, the present MSA.,
is filed before this Court.
4. The learned counsel appearing for the appellants
would vehemently contend that even though the First Appellate
Court came to the conclusion that the legal heirs are not
brought on record on suo motu came to the conclusion that
they are the necessary parties and no application has been filed
before the First Appellate Court. The very approach of the Trial
Court is erroneous. The learned counsel also would submit that
the matter was remanded and the time is also fixed, the same
is also erroneous. Hence, it requires interference.
5. Per contra, the learned counsel appearing for the
respondents would submit that no stay has been granted in this
matter. The plaintiffs have filed an application before the Trial
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Court and impleaded the legal heirs of Doddathayi, got
amended the plaint and also adduced the evidence. Now, the
case is set down for arguments. The Trial Court also not
committed any error in remanding the matter when the Court
came to the conclusion that the legal heirs of Doddathayi are
the necessary parties to decide the suit when the claim is made
that the suit schedule properties are the ancestral and joint
family property.
6. Having heard the respective counsel, no doubt, the
First Appellate Court set aside the order of the Trial Court.
While setting aside, remanded the matter to dispose of the
same in accordance with law. During the course of arguments
also, it is emerged that one Doddathayi died leaving behind her
legal heirs and they were not made parties to the proceedings.
When such being the case, the First Appellate Court rightly
came to the conclusion that the legal heirs of the said
Doddathayi are the necessary parties since the claim made in
the suit is that the suit schedule properties are the ancestral
and joint family properties. Without arraying them in the
proceedings cannot be decided the rights of the parties and
again it will leads to multiplicity of proceedings. The First
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Appellate Court also not impleaded them as contended by the
appellants' counsel but only a direction was given to the
plaintiffs shall implead the legal heirs of Doddathayi and also if
they have been impleaded, an opportunity has to be given to
them also. No doubt, the First Appellate Court have taken note
of not making them as parties to the proceedings and ought to
have given an opportunity in the First Appellate Court itself but
the First Appellate Court came to the conclusion that when the
proper parties are not made as parties to the proceedings,
when the legal heirs of Doddathayi are the necessary parties to
adjudicate the matter, remanded the matter to implead them
to decide the issue involved between the parties. Hence, I do
not find any error in the order passed by the First Appellate
Court.
7. The learned counsel appearing for the respondents
also has brought to the notice of this Court that already they
have been impleaded and given an opportunity to adduce
evidence and to make the pleadings before the Trial Court and
also the evidence has been recorded. Now, the matter is posted
for arguments. Taking into note of the subsequent
developments, I do not find any merit in the appeal.
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8. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is dismissed.
Sd/-
JUDGE
CP
